Gill v Minister for Immigration, Citizenship and Multicultural Affairs - [2024] FedCFamC2G 392

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gill v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 392

File number: MLG 745 of 2019

Judgment of: JUDGE LADHAMS

Date of judgment: 3 May 2024

Catchwords: MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant student visas to the applicants – whether the Tribunal failed to give proper, genuine and realistic consideration to written submissions provided on behalf of the applicants – whether the Tribunal failed to consider a clearly articulated argument or an argument that clearly emerged on the materials – whether the Tribunal decision was affected by reasonable apprehension of bias – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth) ss 359AA, 359A, 476, 477

Migration Regulations 1994 (Cth) Sch 2, cll 500.212, 500.311

Cases cited:
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15

Division: Division 2 General Federal Law

Number of paragraphs: 94

Date of hearing: 11 April 2024

Place: Perth (via Microsoft Teams)

Counsel for the Applicants: The first applicant appeared in person

Counsel for the First Respondent: Ms K Petrovski

Second Respondent: Submitting appearance, save as to costs.

Solicitor for the Respondents: Sparke Helmore Lawyers
ORDERS

MLG 745 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
SUKHDEEP KAUR GILL

First Applicant

TEJINDER SINGH KALER

Second Applicant

HARSAHEJ SINGH KALER

Third Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE LADHAMS

DATE OF ORDER:

3 MAY 2024

THE COURT ORDERS THAT:
1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION

The applicants are non-citizens who came to Australia on student visas and who applied for further student visas in 2017 whilst in Australia. A delegate of the Minister refused to grant the applicants student visas and that decision was affirmed by the Administrative Appeals Tribunal (Tribunal) on 26 February 2019. The applicants seek judicial review of the Tribunal decision, invoking the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicants’ application contains three grounds alleging that the Tribunal:
(a)failed to give proper, genuine and realistic consideration to the written submissions made by the applicants’ representatives;
(b)failed to consider a clearly articulated argument raised by the applicants or which clearly arose on the evidence before the Tribunal; and
(c)made a decision that was vitiated by a reasonable apprehension of bias.
For the reasons explained below, the applicants have not established that the Tribunal made any jurisdictional error in reaching its decision. The application for judicial review is therefore dismissed.
VISA APPLICATION AND ADMINISTRATIVE DECISIONS
On 15 March 2017 the applicants applied for the student visas the subject of this judicial review application. The first applicant was the primary visa applicant. The second applicant is the husband of the first applicant and the third applicant is the child of the first and second applicants. The second and third applicants were included in the application as members of the same family unit.
A delegate of the Minister decided not to grant the applicants student visas on 4 August 2017. The delegate was not satisfied that the first applicant genuinely intended to stay in Australia temporarily. The delegate therefore found that the first applicant did not satisfy cl 500.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). The delegate found that the second and third applicants did not meet the criterion in cl 500.311, which required them to be members of the family unit of a person who held a student visa.
On 9 August 2017 the applicants made an application to the Tribunal seeking merits review of the delegate’s decision.
On 3 December 2018 the Tribunal invited the applicants to provide information about whether the first applicant was enrolled in a course of study and was a genuine applicant for entry and stay as a student. The Tribunal’s invitation contained a link to an online form and the applicants completed the online form.
On 9 January 2019 the Tribunal sent to the applicants an invitation to attend a hearing on 31 January 2019.
On 25 January 2019 the applicants, via their representative, provided to the Tribunal a genuine temporary entrant statement of the first applicant, written submissions and various supporting documents.
On 30 January 2019 the applicants, again via their representative, provided a further statement of the first applicant, in which she corrected some of the information in her earlier statement and in the submissions made by her representative and provided some new information.
The first applicant attended the hearing before the Tribunal on 31 January 2019, accompanied by her representative. At the conclusion of that hearing, the Tribunal afforded the applicants an opportunity to provide further submissions and decided to adjourn the hearing to another day.
On 7 February 2019 the applicants provided to the Tribunal a further submission and supporting documents, in response to information put to the first applicant at the hearing and in support of the oral request made by the applicants’ representative at the hearing for the Tribunal member to recuse himself.
On 11 February 2019 the Tribunal sent to the applicants an invitation to attend a resumed hearing on 20 February 2019. The first applicant attended the resumed hearing, again assisted by her representative.
The Tribunal affirmed the delegate’s decision not to grant the applicants student visas on 26 February 2019.
SUMMARY OF TRIBUNAL DECISION
The Tribunal considered whether the first applicant genuinely intended to stay in Australia temporarily, as required by cl 500.212(a), and, in so doing, acknowledged that it was required to have regard to Ministerial Direction No 69, without considering the factors referred to in that Direction as a checklist.
The Tribunal noted that the first applicant and her solicitors submitted multiple written submissions to the Department and the Tribunal, which, in the Tribunal’s view, contained several inconsistencies and contradictions that went to material aspects of Ministerial Direction No 69. The Tribunal provided the first applicant with an opportunity to comment on information of concern at the beginning of the first hearing, including adverse information derived from the first applicant’s Provider Registration and International Student Management System (PRISMS) record and movement record.
The Tribunal considered a request made by the applicants’ representative for the member to recuse himself on the basis that the manner in which the first hearing was conducted may give rise to a reasonable apprehension of bias. The Tribunal declined the recusal request.
The Tribunal made findings addressing the relevant factors identified in Ministerial Direction No 69.
In considering the first applicant’s circumstances in her home country, the Tribunal accepted that the first applicant advanced reasonable reasons for not undertaking study in her home country. The Tribunal also accepted, based on the regular contact that the first applicant had with family in India and her consultation with them about critical decisions, that the first applicant had family ties that extend beyond her immediate family in Australia and which served as a significant incentive for her to return to India. The Tribunal was unable to reach a conclusion as to whether the economic circumstances of the first applicant presented as a significant incentive for her not to return to India, as it considered the evidence about the applicants’ earnings from employment to be limited and sometimes contradictory. The Tribunal accepted that the first applicant did not have any military service commitments in India and the Tribunal was not aware of political or civil unrest.
In considering the first applicant’s circumstances in Australia, the Tribunal found that the first applicant had developed a structured and well-ordered life in Australia, with ties of immediate family, work, significance remittances from India from her family, community links and involvement and a small network of friends who have assisted her on occasion and with whom she socialised. The Tribunal considered that the first applicant’s ties with Australia presented as a strong incentive for her to remain in Australia and, in circumstances where the first applicant was not enrolled in the Higher Education sector from April 2016 until her student visa expired, the Tribunal was of the view that the first applicant was using the student visa program to maintain ongoing residence.
In considering the value of the course to the first applicant’s future, the Tribunal found that the first applicant had already completed many of the subjects of her proposed study in her previous courses and had difficulty accepting that she was a genuine student committed to academic progress. Having considered the first applicant’s past study, the Tribunal formed the view that the first applicant was more than suited and qualified to open and run her own hospitality enterprise if that should be her choice. The Tribunal considered the first applicant’s reasons for studying in the Vocational Education and Training (VET) sector prior to returning to the Higher Education sector but was of the view that the first applicant was already well-qualified to commence Bachelor level studies in Australia. The Tribunal concluded that the first applicant was undertaking a course that offered little more than marginal gain and was unable to conclude that the course would assist the first applicant to obtain employment or improve her employment prospects in India.
In considering the first applicant’s immigration history, the Tribunal found that the first applicant had resided in Australia for over four and a half years. She came to Australia to study English and to study at Master level, but withdrew from the English course in Tasmania following advice from her doctor and never commenced study at a Master level. The Tribunal found that the first applicant had protracted breaks in her enrolment and study. The Tribunal noted that the first applicant in early 2016 commenced study in the VET sector and found that she had undertaken a series of short, inexpensive courses. The Tribunal formed the view that the first applicant had been using the student visa primarily for maintaining ongoing residence.
The Tribunal considered that the first applicant’s periods of non-enrolment and non-study were relevant to the assessment of her genuine intention to temporarily stay in Australia. The Tribunal noted that when the first applicant entered Australia to study English and at a Master level, she held a student visa that was subject to conditions 8202 and 8516. The Tribunal noted the evidence that the first applicant had not been enrolled in approved courses in the Higher Education sector from 12 April 2016 to 15 March 2017 and considered the evidence and reasons advanced by the first applicant for not conforming to her visa obligations. The Tribunal formed the view that the breaches of the conditions on the first applicant’s visa were not minor, accidental, or merely in normal holiday breaks of late December and January. Rather, the Tribunal considered the breaches to have been major, deliberate, occasioned after consultation with family and ongoing. The Tribunal noted that there was no evidence before it that the first applicant sought advice from the Department as to her visa obligations, rights and responsibilities.
The Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily, and therefore found that she did not meet the requirement in cl 500.212(a) in Sch 2 to the Regulations. It followed that the Tribunal was not satisfied that the first applicant was a genuine applicant for entry and stay as a student as required by cl 500.212.
JUDICIAL REVIEW APPLICATION
The application was filed on 16 March 2019 and was therefore made within 35 days of the date of the Tribunal decision, as required by s 477(1) of the Migration Act.
The applicants raise the following grounds in their application (without alteration):
1.The Tribunal failed to give proper, genuine and realistic consideration to the written submissions made by the Applicant’s Representatives.
Particulars
a)The Tribunal rejected the whole of the written submissions made on behalf of the Applicant as a result of misinterpreting corrections in the initial statement and accordingly gave the submission little weight (refer to paragraph 15 of the Tribunal’s decision).
b)The Tribunal took what were minor inconsistencies as being major inconsistencies affecting material aspects of Ministerial Direction 69. (refer to paragraph 12 of the Tribunal’s decision).
c)Such a failure caused the Tribunal to discount the entirety of the written submissions made on the Applicant’s behalf without giving the submissions proper, genuine and realistic consideration.
2. The Tribunal failed to consider a clearly articulated argument raised by the Applicant or which clearly arose on the evidence before the Tribunal.
Particulars
a)During the hearing the Applicant articulated the difficulties she faced with pregnancy, a new born baby, loss of significant weight and a later diagnosis of coeliac disease.
b)The Tribunal failed to consider these matters individually or cumulatively and treated the issues raised in relation to her pregnancy and new born as parental responsibilities that parents around Australia deal with on a daily basis without considering the specific evidence given by the Applicant or the cumulative effect of the issues she faced.
c)The Applicant provided medical evidence of her diagnosis of coeliac disease (refer to paragraph 43 of the Tribunal’s decision) and explained the impact it had on her.
d)The Tribunal failed to consider the Applicant’s oral evidence and then discounted the medical evidence simply because the medical advice was dated after the decision made on or around December 2016 despite the fact she was only diagnosed in May 2017 and that the criteria for the visa is to be considered at the time of decision (being in this instance, the Tribunal’s decision).
e)The Applicant’s representative provided oral arguments that the Applicant’s child was not the holder of a visa that allowed the child to travel overseas. The Tribunal dismissed this claim without asking for evidence, yet found that this oral argument was an assertion only and did not give any weight to this matter (refer to paragraph 11 of the Tribunal’s decision).
3.The Tribunal’s decision is vitiated by jurisdictional error due to a reasonable apprehension of bias.
Particulars
a)During the first hearing, the Applicant’s representative requested the member recuse himself as a result of the Member’s conduct and approach during the hearing, which may lead a fair-minded lay observer to reasonably apprehend that the member might not bring an impartial mind to the applicant’s case.
b)The reasons provided to the Tribunal were articulated both in writing and orally during the first hearing and are summarised at paragraph 55 of the Tribunal’s decision.
c)The Tribunal made remarks in the decision pertaining to overseas students, in particular that they have minimal obligations and that this case was a weak case by reference to the Applicant’s non-compliance. (refer to paragraph 36 of the Tribunal’s decision) as well as the value overseas students from India would achieve in studying VET sector courses in Australia (refer to paragraph 85 of the Tribunal’s decision) which may lead a fair-minded lay observer to reasonably apprehend the Tribunal might not bring an impartial mind to the applicant’s case.
d)The Tribunal failed to provide the Applicant with a copy of the adverse information, Prism Records and Movement records to the Applicant after the hearing.
e)The Applicant was not provided procedural fairness at the resumed hearing to outline why the courses would benefit her if she returned to India despite this being a material aspect of Ministerial Direction 69.
f)The Tribunal’s reasoning following the allegation, and the Tribunal’s comments pertaining to the Applicant’s representative also indicate that a fair minded lay observer might reasonably apprehend the member might not have brought an impartial mind to the applicant’s case.
Pursuant to an Order made by a Registrar of the Court on 19 May 2021, the applicants were to file and serve any amended application, any affidavits, any supplementary court book and written submissions 28 days before the hearing. The applicants did not file any documents in accordance with this Order. The Minister filed written submissions in accordance with the Order.
IS THE TRIBUNAL DECISION AFFECTED BY JURISDICTIONAL ERROR?
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Tribunal decision by reference to the applicants’ complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Tribunal decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicants if they establish that the Tribunal decision is affected by jurisdictional error. Jurisdictional error was recently explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (LPDT), where the Court said at [2]-[3] (footnotes omitted):
2.Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute…
3.Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed…. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The first applicant’s submissions at the hearing

The applicants were represented by a lawyer at the time the application was filed but they were no longer legally represented at the time of the hearing. The first applicant was given an opportunity at the hearing to make submissions in relation to the grounds in the application but declined to do so. Instead, the first applicant submitted at the hearing that she explained to the Tribunal everything about her study, that she was sick at the time and had a newborn child and told her lawyer to provide everything. These submissions do not allege any error in the Tribunal decision. Rather, they invite the Court to engage in merits review of the Tribunal decision. As explained above, the Court does not have jurisdiction to review the factual merits of the Tribunal decision.
To the extent that the first applicant’s oral submissions may be seen as an assertion of disagreement with the Tribunal decision, this too does not give rise to jurisdictional error. Disagreement with a decision, even emphatic disagreement, does not of itself give rise to jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
The first applicant’s oral submissions at the hearing therefore do not establish jurisdictional error in the Tribunal decision.
Ground 1: alleged failure to give proper, genuine and realistic consideration to the written submissions made by the applicants’ representative
Ground 1 is an assertion that the Tribunal failed to give proper, genuine and realistic consideration to the written submissions made by the applicants’ representative. The particulars to the ground refer to the Tribunal having rejected the whole of the submissions made on behalf of the applicants as a result of misinterpreting corrections in the initial statement and accordingly giving the submission little weight. The particulars assert that the Tribunal treated minor inconsistencies as major inconsistencies and that this affected aspects of its consideration of Ministerial Direction No 69.
The particulars refer specifically to [12] and [15] of the Tribunal’s decision. The Tribunal at [12] identified some of the inconsistencies in the applicants’ submissions and evidence:
The applicant and the applicant’s solicitors submitted multiple written submissions to the Department and the Tribunal. These submissions contained a series of inconsistencies and contradictions that were of concern to the Tribunal. The set of inconsistencies and contradictions went to material aspects of Ministerial Direction number 69. Examples are as follows:
•The applicant’s solicitors advised the Tribunal “The review applicant does not have any family ties in Australia” (Tf: 116). The applicant advised the Tribunal she “…currently lives in [place] with my husband and two children’ (Tf: 102). In a different submission the applicant advised the Tribunal her “immediate family reside with her in Australia” (Tf: 54);
•The applicant’s solicitors advised the Tribunal in their submission dated 25 January 2019 (Tf: 115) “the review applicant earns approximately $800-$900 a month if she works a maximum of 40 hours per fortnight…if the applicant does not work her full 40 hours per fortnight, she earns approximately $500 per fortnight” (Tf: 115). The applicant advised the Tribunal she currently works part time and earns $500-$900 per fortnight” (Tf: 102). In a different submission the applicant advised the Tribunal she was employed as a personal care attendant from November 2015 until June 2016, June 2017 until January 2018 and June 2018 until the present time at three different nursing/aged care agencies at an annual salary of $22,000 (Tf: 55);
•On 25 January 2019 the applicant’s solicitors advised the Tribunal in writing “It is our view that it is significant that the Review Applicant has not any gaps in her enrolment…” (Tf: 115). However the applicant advised the Tribunal there were three gaps in her enrolment from February 2015 until December 2016, October 2017 until April 2018 and May 2017 until May 2018. The applicant provided reasons for each gap in her enrolment (Tf: 55);
•On 18 December 2018 the applicant’s solicitors filed a written response by email to a Request for Student Visa Information under s.359(2) of the Act. That response advised there were three gaps in the applicant’s enrolment from February 2015 until December 2016, October 2017 until April 2018 and May 2017 until May 2018. The applicant provided reasons for each gap in her enrolment (Tf: 55).
After then referring to a correction that the first applicant made to the information in her earlier statement and the submissions provided by her representative, the Tribunal said at [15]:
The Tribunal was concerned that the reliance upon material containing errors might result in an incorrect decision. The Tribunal gave consideration to giving the submission provided by the solicitors for the applicant little weight. Such a decision might of course result in an injustice to the review applicant. The Tribunal wished to ensure it had a correct understanding of the facts of the case. Accordingly the Tribunal determined to test all relevant information by making it available to the applicant in writing and to her solicitor at the beginning stage of the review hearing in accordance with the procedure outlined in s.359AA of the Act. The Tribunal explained this process to the review applicant and her solicitor. Neither the review applicant nor her solicitor objected to this process at the hearing. Both the review applicant and her solicitor provided multiple responses to the information provided under s.359AA of the Act. Both the review applicant and her solicitor responded to questions to the applicant. On occasion the applicant and her solicitor engaged in discussion before either or both of them responded to the question of the Tribunal.
In response to this ground, the Minister submitted that the ground as pleaded misrepresents the Tribunal’s findings.
First, the Minister submitted that the Tribunal did not classify the inconsistencies in the submissions as ‘minor’ or ‘major’. I accept this submission. The Tribunal did not itself indicate that the discrepancies were major and the only reference to the terms ‘major inconsistencies’ and ‘minor inconsistencies’ that I can identify are those in the particulars to ground 1. As can be seen from the extracts above the Tribunal did identify that the inconsistencies and contradictions went to ‘material aspects’ of Ministerial Direction No 69. That is an acknowledgement that the inconsistencies related to matters that the Tribunal was required to consider in reaching its decision. In other words, the inconsistencies did not relate to insignificant factual matters. However, an acknowledgement that there are inconsistencies in matters that are relevant to the Tribunal’s decision does not amount to a classification of those inconsistencies as major.
I further accept the Minister’s related submission that, having identified these inconsistencies, the Tribunal sought clarification to ensure it had the correct understanding of the facts of the case and this was an entirely appropriate approach for the Tribunal to take. As I read [15] of the Tribunal’s reasons, the Tribunal is not simply saying that it gave little weight to the submission provided by the applicants’ representative. Rather, the Tribunal is saying that it considered giving the submission little weight, but recognised that so doing might be unfair to the applicants and therefore sought clarification from the first applicant about the inconsistencies it identified. It was part of the Tribunal’s fact-finding function to test the first applicant’s evidence and where there were apparent inconsistencies, it was appropriate for the Tribunal to give the first applicant an opportunity to clarify her evidence.
The Minister’s second submission in response to this ground is that the applicants’ assertion that the Tribunal discounted the entirety of the applicants’ written submissions fails on the face of the Tribunal’s decision record. The Tribunal referred to and had regard to the responses given by the first applicant and her representative in response to the inconsistencies it identified. The Tribunal also referred in other parts of its reasons to information in the submissions provided by the applicants and critically evaluated the submissions advanced, including identifying aspects of the submissions that were not consistent with the evidence before the Tribunal. The Tribunal repeatedly referred to the submissions advanced on behalf of the applicants and the information given by the first applicant in its consideration of whether the first applicant met the genuine temporary entrant criterion.
There is nothing on the face of the Tribunal’s reasons to indicate that the Tribunal failed to ‘read, identify, understand and evaluate the representations’ made in the submissions: Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [24]. Further, the applicants did not identify, in the particulars to the ground or elsewhere, precisely what information they believe was referred to in the submissions, but not considered by the Tribunal.
Ground 1 does not establish jurisdictional error.
Ground 2: alleged failure of the Tribunal to consider a clearly articulated argument raised by the applicants
By ground 2, the applicants assert that the Tribunal failed to consider information provided by the first applicant about the difficulties she faced with pregnancy, a newborn baby, loss of significant weight and a diagnosis of coeliac disease, and her submission that her child was not the holder of a visa that allowed her to travel overseas.
I accept the Minister’s submission in response that the Tribunal’s reasons for decision show that it did consider these matters. The matters relating to the first applicant’s health, pregnancy and child rearing were relevant to the first applicant’s explanations as to why she had not completed courses she enrolled in and the related gaps in her study history in Australia.
The Tribunal addressed the first applicant’s difficulties with her pregnancy at [26] of its reasons in the context of considering the reasons her enrolments in an English language course and a Master of Business Administration course were cancelled. The Tribunal said in this paragraph:
The applicant provided a copy of a letter (Tf: 103) from a doctor in Tasmania dated 11 August 2014 that advised she had just found out she was pregnant, was feeling quite unwell and not coping too well. The doctor considered it advisable she join her family in Melbourne. On 14 November 2014 the University of Tasmania made a determination it considered the applicant met the policy requirements that provide for a release letter to be granted (Tf: 60). The Tribunal accepts this.
The Tribunal, in addressing the factors in Ministerial Direction No 69, again accepted at [92] of its reasons that the applicant withdrew from her English course in Tasmania following advice from her doctor.
The first applicant submitted to the Tribunal that being a mother and having children can be a significant and relevant factor as it impacts her ability to study and her academic history. The Tribunal considered this submission at [43] of its reasons, observing:
It is correct to observe parental responsibilities can impact on enrolment, study and academic history. Parents around Australia deal with these difficult and important responsibilities on a daily basis. The applicant did not provide any reports of a professional or expert nature (such as from a psychiatrist, psychologist, medical expert or student counsellor as had been provided in relation to an earlier period of inability to study in 2014…) that outlined an inability to enrol, study and progress academically.
The Tribunal addressed the first applicant’s health issues at [43] of its reasons, in considering the explanations offered by the first applicant in relation to periods where she had not been enrolled in a course of study. The Tribunal noted that, in relation to the period of non-enrolment from October 2017 to April 2018, the first applicant’s explanation was that she wanted to pursue a different course and had to return to India (although the applicant subsequently confirmed that she did not return to India after 2016). The applicants’ solicitor subsequently provided a submission that the first applicant was ‘seriously unwell’ during this period. The Tribunal then identified the medical evidence before it in relation to the first applicant’s health conditions, including coeliac disease and noted that, in her evidence, the first applicant advised of bleeding and weight loss.
In evaluating this evidence at [43], the Tribunal said:
The medical reports provided by the applicant provide a diagnosis of her complaints. The medical reports advise the applicant was under treatment. The medical reports do not state the applicant was unfit to enrol in a course of study, that she was not capable of engaging in study, that she could not cope with study, or that she should not engage in study. The applicant did not commence her studies in this period as her enrolment in a Diploma of Hospitality Management scheduled to commence on 31 October 2017 was cancelled by the education provider on 14 December 2016. Some ten months prior to this period in December 2016 the applicant’s enrolment was cancelled. From 14 December 2016 the applicant was not enrolled in the Diploma of Hospitality Management. The Tribunal pays heed to the various pieces of medical advice. The Tribunal concludes the applicant was not enrolled in a Diploma of Hospitality because as she advised “she wanted to pursue a different course”. The Tribunal is of the view the medical advice (whilst genuine) is a post-event justification of a decision made on or around December 2016 to not commence studies.
In the light of this consideration by the Tribunal, I make the following observations in respect of particulars (c) and (d) of ground 2:
(a)The particulars refer to oral evidence given by the first applicant at the hearing as to the impact that coeliac disease had on her and assert that the Tribunal failed to consider the oral evidence. There is no transcript of the Tribunal hearing, or other evidence, before the Court to show the oral submissions made by the first applicant and the first applicant has not identified with any particularity what evidence she believes she provided to the Tribunal that the Tribunal failed to consider. The applicants bear the onus of establishing jurisdictional error: see LPDT at [10]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [41]. In the absence of evidence, I cannot find that the Tribunal failed to consider some aspect of the first applicant’s oral submissions.
(b)The references in particular (d) to the Tribunal discounting the medical evidence because the date of the ‘decision’ was prior to the date of diagnosis and that the ‘criteria for the visa is to be considered at the time of the [Tribunal’s] decision’ misunderstands the reasoning of the Tribunal. The first applicant provided the evidence in relation to her health conditions to the Tribunal to explain why she had not been enrolled in a course of study for a period while she was the holder of a student visa, and thereby breached a condition of her visa. The reasoning of the Tribunal shows that the Tribunal accepted the medical evidence as genuine. However, the Tribunal did not accept that the first applicant’s medical conditions were the reason she did not commence her studies during the relevant period, in circumstances where the first applicant had earlier explained that the reason for the gap in her study was because she wanted to pursue a different course, and the first applicant decided to withdraw from the relevant course, and her enrolment was consequently cancelled, in December 2016, well before the start date of the course and before her diagnosis with a medical condition. Further, the Tribunal’s reasons noted that the medical evidence did not demonstrate that the first applicant’s medical conditions prevented her from studying. No jurisdictional error is evident in this reasoning.
Also relevant to the Tribunal’s consideration of the matters referred to in particulars (a) to (d) is the Tribunal’s observation at [34] of its reasons that:
The Tribunal is of the view it is reasonable to have expected that if she felt that she was unable to obtain enrolment in a registered course of study due to her circumstances, that she could have deferred any further studies and returned to her home country rather than remain in Australia in breach of a condition of her visa.
The applicants have not established jurisdictional error by ground 2 insofar as the ground asserts that the Tribunal failed to consider clearly articulated arguments raised by the first applicant or which clearly arose on the evidence before the Tribunal.
Particular (e) of this ground refers to the Tribunal’s treatment of an oral submission of the applicants’ representative to the effect that the first applicant’s child was not the holder of a visa that allowed the child to travel overseas. The applicants’ assertion in relation to this particular is not so much that the Tribunal failed to consider it (as is the case with the rest of the ground), but rather that it dismissed the claim without asking for evidence, on the basis that it was an oral assertion only. While the particular directs attention to [11] of the Tribunal reasons, that paragraph addresses the role of Ministerial Direction No 69, and not the matter referred to in particular (e).
Having reviewed the Tribunal’s reasons as a whole, I infer that the applicants are referring to the Tribunal’s response to the 11^th reason advanced by the applicants in support of the request for the Tribunal member to recuse himself, which was to the effect that the Tribunal member placed emphasis on the period during which the first applicant held a bridging visa and why she did not travel home, without acknowledging that the first applicant was concerned about her open Tribunal application and that her youngest dependent child could not travel because she was on a bridging visa E. The Tribunal responded at [58]:
The Tribunal asked questions about cl.9(b) of MD 69. This clause refers to “the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to the home country”. The applicant provided a written response to the Tribunal that she returned to India in January 2016 to see her family after the death of her brother (Tf: 57). She addressed her sickness after the birth of her daughter (TF: 102). The applicant did not address the inability of her daughter to travel because of visa complications in any of the written submissions to the Tribunal. The applicant did not provide any written material to the Tribunal concerning the inability of her daughter to travel because of visa complications. There was no written material on the Department file or Tribunal file concerning visa applications, granted or refused concerning the applicant’s youngest child. The Tribunal had before it only assertions. The Tribunal was seeking to establish the factual situation.
The Tribunal also referred at [78] of its reasons to a written submission of the applicants that:
The applicant was unable to travel back to India after 15 March 2015 because of an error made by her former MA when he included in the visa application incorrect details relating to the daughter of the applicant that resulted in the daughter becoming unlawful. The applicant was not aware of her daughter’s unlawful status until she sought advice and subsequently lodged an application for a Bridging visa E. This Bridging visa E was subsequently issued to the daughter. The health of her daughter is of paramount importance to the applicant. She could not bear being separated from her child for any extended periods of time. It is reasonable for the applicant to have remained in Australia since the lodgement of her student visa application.

As I understand the Tribunal’s reasoning at [58], the Tribunal is not stating that it rejected the applicants’ submission about the first and second applicants’ daughter’s inability to travel or that it gave it no weight, but rather explained the reasons it was asking questions about that issue. Those reasons relate to the extent of the first applicant’s ties to her home country. The Tribunal accepted that the first applicant had family ties in India that serve as a significant incentive for the first applicant to return to her home country: [68] of the Tribunal’s reasons. The Tribunal did this based on other evidence available to it, without expressly accepting or rejecting the first applicant’s submission about the issues with her daughter’s visa.
In circumstances where the Tribunal was already able to make a positive finding that the first applicant had family ties to India that were a significant incentive for her to return there, based on the evidence that was before it, it is unclear from the applicants’ ground why the applicants believe the Tribunal made a jurisdictional error in not seeking additional evidence from them about the second daughter’s visa status. It was up to the applicants to provide to the Tribunal the evidence that they considered to be relevant to their case. It is not clear from the ground and the particular whether the applicants are asserting that the Tribunal had a duty to inquire. A ‘failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained’ may, in some cases, amount to jurisdictional error: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 at [25]. However, given the Tribunal’s positive findings about the first applicant’s family ties serving as a significant incentive to return to India, any inquiry relating to the daughter’s visa status or the first applicant’s reasons for not returning to India more frequently while resident in Australia does not relate to a ‘critical fact’.
Particular (e) to ground 2 does not establish jurisdictional error.
Ground 3: whether the Tribunal decision is affected by a reasonable apprehension of bias and other procedural fairness issues
By ground 3 the applicants assert that the Tribunal decision is vitiated by jurisdictional error due to a reasonable apprehension of bias. Particulars (a), (b), (c) and (f) explain the basis on which the applicants assert the decision is affected by reasonable apprehension of bias and particulars (d) and (e) refer to other issues relating to procedural fairness.
Reasonable apprehension of bias
The particulars addressing the applicants’ assertion that the Tribunal decision is vitiated by reasonable apprehension of bias indicate that the claim of bias is made on the following basis:
(a)the applicants’ representative requested that the member recuse himself as a result of the member’s conduct an approach during the first hearing, which may lead a fair-minded lay observer to reasonably apprehend that the member might not bring an impartial mind to the applicants’ case;
(b)the Tribunal made remarks in the decision pertaining to overseas students having minimal obligations, this case being a weak case and the value overseas students from India would achieve in studying VET sector courses in Australia, which may lead a fair-minded lay observer to reasonably apprehend the Tribunal might not bring an impartial mind to the applicants’ case; and
(c)the Tribunal’s reasoning following the allegation, and the Tribunal’s comments pertaining to the applicants’ representative, indicate that a fair-minded lay observer might reasonably apprehend the member might not have brought an impartial mind to the applicants’ case.
The applicants referred in the particulars to the concerns presented by their representative to the Tribunal about the Tribunal member’s conduct, as summarised at [55] of the Tribunal’s reasons. The concerns summarised at [55] are as follows (reproduced without alteration):
1. The presiding member failed to give an introduction at the hearing;
2.The presiding member came to the hearing with a closed mind by bringing up adverse information at the beginning of the hearing;
3.The presiding member made inappropriate comments about his own university education;
4.The presiding member asked an unrealistic question as to whether the applicant had sought advice from a Chamber of Commerce, like industry group or company as to the utility of Australian education in India. She had sat in on many GTE cases and it was a well-known fact that Australia has a good international reputation for study, that often education agents are used to seek advice about courses and it was unrealistic to put it to the applicant and should not be relied upon;
5.The presiding member had disassociated or not taken into account the difficulty of balancing, as a female, two young children by placing too much weight on work requirements when she may have done a shift here and there whilst she wasn’t studying;
6.The presiding member failed to consider that she was trying to point out that at the completion of her Certificate IV in Commercial Cookery she had a further unit to complete and that was the reason for non-enrolment;
7.The case was not getting a fair go. The solicitor for the applicant advised the foregoing fell within apprehended bias, quoted a case reference that we [her legal firm] had run at the Full Court and she felt she had a good knowledge of apprehended bias and it is appropriate in this case to have a recusal;
8.The applicant for the solicitor told the presiding member she was concerned he was writing the decision as we speak to make a negative decision without potentially giving us the opportunity to address some of the issues
9.If the presiding member continues the hearing and makes a decision today without giving us an adequate response obviously these could be grounds we would raise at the Federal Circuit Court;
10.One of her issues in GTE cases is the fact that members probably do too many of them.
An allegation of bias is a serious allegation which must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69].
The decision of the Tribunal will be vitiated by apprehended bias if a fair-minded well-informed lay person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the review: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17) at [17] (Kiefel CJ and Gageler J), [56] (Nettle and Gordon JJ); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at [6], [33]; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15 (QYFM) at [37] (Kiefel CJ and Gageler J), [67] (Gordon J).
The application of the rule against bias requires two steps:
(a)identification of the factor which it is said might lead the decision-maker to decide the case other than on its legal and factual merits; and
(b)an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits: Ebner at [8]; CNY17 at [21] (Kiefel CJ and Gageler J), [57] (Nettle and Gordon JJ); QYFM at [38] (Kiefel CJ and Gageler J); [67] (Gordon J), [162] (Edelman J), [194] (Steward J); [225] (Gleeson J).
The applicants did not advance any submissions to the Court in support of this ground.
The Minister submitted that the Tribunal’s findings address each point raised by the applicants’ solicitor and the findings were sound and no apprehension of bias arose for the reasons outlined. I have had regard to this submission but I do not consider that it provides a complete answer to this ground.
To the extent that the matter said to give rise to the apprehension of bias is the Tribunal member’s failure to recuse himself when requested, I do not consider that in the circumstances of the present case a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have brought an impartial mind to its decision. The Tribunal was not dismissive of the applicants’ request for recusal. Rather, when this issue was raised at the hearing, the Tribunal stopped hearing the matter, adjourned to allow the applicants to provide a written submission and carefully addressed each point raised in the submission.
The Tribunal’s lengthy response to the concerns raised explains the approach the Tribunal took and why it took that approach. The Tribunal said at [58], in response to the written submissions of the applicants:
On 12 February 2019 the solicitor for the applicant provided a further lengthy written submission to the Tribunal that addressed in part a request for recusal and relevant law. The remainder of this submission addressed issues raised in the review hearing plus supporting documentation (value of the course to the applicant’s future, gaps in enrolment and travel back to India). The written submission outlined the following:
1.At the commencement of the hearing there was no formal introduction addressing the purpose of the hearing. The decision under review was not explained to the Review Applicant, nor was the relevant legal criteria. The Member immediately provided the Review Applicant with a typed list of eleven particulars deemed to be adverse;
The Tribunal considered this paragraph. On 9 January 2019 the Tribunal wrote to the applicant and provided documentation that outlined the process of the hearing. That documentation specifically addressed oaths/affirmations·, length of hearing, hearing recording, interpreters, what happens on the day of the hearing, decision making by the member and the website address whereby an applicant may obtain further information. There is no requirement in the Act or Regulations to provide an introduction at the commencement of a hearing. It is the practice of the hearing attendant staff prior to commencement of the hearing to outline to applicants the processes of the hearing. In this review application the applicant was represented by Ms Carina Ford of Carina Ford Immigration Lawyers. Ms Ford attended all stages of the hearing and often intervened in the hearing processes. The Tribunal was and is confident that Ms Ford would have explained the review process and relevant legal principles. The applicant made extensive written submissions to the Tribunal (separate from submissions provided by her solicitors) that addressed the relevant legal criteria. The applicant advised the Tribunal in writing prior to the hearing she had reviewed the written submission provided by her solicitors and pointed out errors in that submission. The Tribunal explained to the applicant at the beginning of the hearing the role of the interpreter and stressed to the applicant that if at any time she needed assistance she could intervene and seek that assistance from the Interpreter or the Tribunal. The applicant advised the Tribunal she understood this and on occasion did seek to have matters repeated, clarified or explained with and without the assistance of the interpreter.
2.The sheer amount of adverse information the Review Applicant was shown orally (noting she was not allowed to keep a copy of the written adverse information, movement records or PRISM records following the hearing) also indicated that the Member was not approaching this case with an open mind;
The Tribunal provided a cover sheet containing 11 relatively short paragraphs (10 of which were one sentence) plus a copy of her Movement record and PRISMS record to the applicant. The Tribunal provided a copy of the same document to the applicant’s solicitors. It was not “shown orally”. The Tribunal read out and explained each paragraph to the applicant. The applicant sought and was granted additional time to discuss the document and its contents with her solicitor. In examination of the applicant the Tribunal read out each paragraph separately and discussed each paragraph separately with the applicant. On occasion the applicant consulted with her solicitor prior to responding to a question. On occasion the solicitor intervened and provided a response. Neither the applicant nor her solicitor raised any issues of concern with the Tribunal as to the provision of the adverse information.
The Tribunal provided the adverse information at the commencement of the hearing for a reason. It wished to establish the factual matrix surrounding the review application (for detail see paragraphs 16 to 21 above). The Tribunal had before it multiple written submissions from both the applicant and her solicitor. Those multiple written submissions contained a series of inconsistencies, contradictions and corrections that were of concern to the Tribunal. The set of inconsistencies and contradictions went to material aspects of Ministerial Direction number 69. The establishment of the factual underpinnings of the review application at the outset is in effect a necessary pre-condition to merits review examination.
The Tribunal is not aware of anything in the Act or Regulation or in dicta from superior courts that suggests adverse information may or should not be provided at the commencement of the hearing.
3.When the applicant brought up that two periods overlapped and as such could not have been accurate, namely 8 and 9, the Member interrupted, which is evidenced by cross talk on the recording, and never addressed or allowed the issue to be appropriately addressed;
The Member did not interrupt the applicant, but was seeking to establish the facts concerning an overlapping period because the applicant and her solicitor had provided conflicting advice as to this particular period.
4.The submission went onto acknowledge a decision maker need not address their task with a “blank mind” and may reveal a preliminary view or indicate some predisposition to one view or outcome over another. The decision maker must remain open to persuasion until their function is completed;
The Tribunal has remained open to persuasion and is satisfied that it brings an impartial and open mind to the decision-making process.
5. The test for establishing apprehended bias;
6. Weak cases are not in an area of immunity from fair process;
The Tribunal did not make any reference to the case being a weak case. The phrase is advanced by the applicant’s solicitors. The Tribunal is sufficiently experienced to understand that any case has strengths and weaknesses and always awaits the conclusion of a hearing prior to making a decision.
7. Question, discussion and alleged conclusion concerning possible enrolment in an educational institution in India to carry out graduate work. The impression is gained of a concluded view about the review applicant’s evidence;
The Tribunal did not have a concluded view on this aspect of the evidence. Cl.9(a) of MD69 requires the Tribunal to consider “whether the applicant has reasonable reasons for not undertaking the study in their home country or region if a similar course is already available there”. The applicant provided evidence of completion of a Bachelor degree in her home country. She came to Australia to study at a Masters level degree. The Tribunal was seeking to establish those “reasonable reasons”, if any. As President Kerr explained in Case number 1419015 [2016] AATA 3075 (29 January 2016) at [42],
“The role of a member, once constituted as the Tribunal (and their duty as an incident of procedural fairness), not infrequently will require them to put unfavourable matters to an applicant. Such instances can be innocently or wilfully misunderstood as evidence of bias or pre-judgement. A member's obligation to put such matters and their responsibility as an inquisitorial tribunal to ask sometimes challenging questions where, as is the case in the MRD the agency whose decision is subject to review takes no part in the hearing, may flag to an applicant the weakness of their case. It would not be in the interests of justice and it would be inconsistent with the principles in s 2A of the AAT Act for the President readily to reconstitute the Tribunal in such circumstances”.
8. The member discussed his own education in Australia. Such discussion was not relevant to the proceedings and could be taken as being condescending and an inappropriate remark without a factual basis;
The applicant advised the Tribunal in response to questions about cl.9(a) of MD69 that she was not satisfied with the education system in India. She advised education institutions in India did not care about students. She advised the teaching was not good. The Tribunal sought to establish how those practices in India were any different to the practice of educational institutions in Australia. The Tribunal observed it was an expectation In Australia that students enrolled in courses, attended instruction, completed assignments and exams and progressed to the next level.
9.There was no evidence before the Member to form the basis for the conclusion that the education system between Australia and India are exactly the same. The Member is entitled to inform himself by reference to matters within his own general knowledge. Repeated remarks from the Member that the review applicant’s experience as a higher education system in India is exactly the same as the experience of a higher education system in Australia gives rise to the impression that the Member may have already formed strong view about the review applicant’s intentions to pursue higher education in Australia;
The Tribunal did not and has not drawn any conclusions that the education system in India and Australia are exactly the same. They clearly are not. The Tribunal was referring to a specific aspect of the education system that had been advanced by the applicant as a “reasonable reason” for not undertaking the study in her home country.
10.The Member asserted conclusively that the review Applicant’s experience in India was exactly the same as the experience of a student in Australia. This exchange expresses a concluded view;
The Tribunal did not express a concluded view.
11.The Member placed emphasis on the period the Review Applicant held a Bridging Visa and why she did not travel home. The Member failed to acknowledge the explanation of the applicant that she was concerned her file would open at the AAT and she would need to travel back. The Member did not acknowledge that the youngest dependent applicant could not travel because the child was on a Bridging visa E.
The Tribunal asked questions about cl.9(b) of MD 69. This clause refers to “the extent of the applicant’s personal ties to their home country (for example family, community and employment) and whether those circumstances would serve as a significant incentive to return to the home country”. The applicant provided a written response to the Tribunal that she returned to India in January 2016 to see her family after the death of her brother (Tf: 57). She addressed her sickness after the birth of her daughter (TF: 102). The applicant did not address the inability of her daughter to travel because of visa complications in any of the written submissions to the Tribunal. The applicant did not provide any written material to the Tribunal concerning the inability of her daughter to travel because of visa complications. There was no written material on the Departmental file or Tribunal file concerning visa applications, granted or refused concerning the applicant’s youngest child. The Tribunal had before it only assertions. The Tribunal was seeking to establish the factual situation.
12.The Member repeated the question, again, in a tone and manner, that indicated frustration at the Review Applicant;
The Tribunal was not frustrated. It was testing evidence.
13.It was obvious during the hearing that the Member was writing the decision as the hearing was progressing. This was illustrated by [the Member] sometimes summarising the evidence to then type it, by the list of adverse information given to the Review Applicant and that in several other cases the Member had proceeded to make a decision on the same day which read in a similar format to how the review Applicant’s case was heard and all of which were affirmed. The Migration Act allows decisions to be made on the same day of the hearing.
The Tribunal was not writing the decision as the hearing progressed. The Tribunal takes detailed notes during a hearing from a template of questions which goes towards Direction 69 and whether the applicant is a genuine temporary entrant. The Tribunal checked with the applicant what it was writing to ensure the notes accurately reflected the evidence. The Tribunal does not understand how the format of previous decisions gives rise to an apprehension of bias.

As can be seen from this extract, the Tribunal at times reiterated that it was satisfied that it brought an impartial mind to the decision-making process and that it had not drawn some of the conclusions that the applicants asserted it had drawn. These matters explain why the Tribunal member chose not to recuse himself and show careful consideration of the concerns raised on behalf the applicants. The Tribunal member’s refusal to recuse himself does not, of itself, give rise to reasonable apprehension of bias in the circumstances of this case. Further, contrary to the assertion in particular (f), there is nothing in the Tribunal’s reasoning at [68] that might cause a fair-minded lay observer to reasonably apprehend that the Tribunal member might not have brought an impartial mind to the applicants’ case. I observe that the applicants have not identified any aspect of the reasoning that, in their view, would give rise to this apprehension of bias.
To the extent that the applicants’ ground is properly understood as asserting that it was the matters summarised at [55] of the Tribunal’s reasons that gave rise to apprehended bias in the Tribunal reasons, it is appropriate for the Court to consider these matters for itself. The Tribunal’s reasons do not address or apply the test for a reasonable apprehension of bias. Aspects of the Tribunal member’s explanations may be relevant to the factual matrix in which the views of the fair-minded and well-informed lay person might be assessed, but in assessing whether a reasonable apprehension of bias arises, I give no weight to the Tribunal member’s subjective views of his own state of mind and impartiality.
The applicants’ first complaint is that the Tribunal did not provide an introduction at the start of the hearing. In written submissions to the Tribunal, the applicants complained that the purpose of the hearing, the decision under review and the relevant legal criteria were not explained to the first applicant. The applicants have not identified any direct legal obligation on the part of the Tribunal to raise matters in an introduction at the start of a hearing, although the Tribunal is required to ensure that the invitation to attend a hearing is a real and meaningful one. I am satisfied from a review of the documents in the court book that, at the time of the hearing, the applicants had legal representation, had provided a copy of the decision under review to the Tribunal, had received information from the Tribunal explaining the purpose of the hearing and some of the matters the Tribunal would consider and had provided information relevant to the criteria and the decision under review. It can be seen from this that the applicants had already been provided some explanations and had responded in a way that demonstrated an understanding of the issues relevant to the hearing. The applicants have not articulated the logical connection between the failure to provide an introduction in these circumstances and the feared deviation from a course of impartially determining the matter on the merits. I do not accept that a fair-minded lay person, aware of the Tribunal’s requirements in relation to the conduct of the hearing and the first applicant’s demonstrated understanding of the issues in the review based on her submissions and responses, might reasonably apprehend that the Tribunal might not have brought an impartial mind to its decision, based on its failure to provide an explanation at the start of the hearing.
The next complaint is that the Tribunal raised adverse matters at the start of the hearing. The implication appears to be that by raising adverse matters at the start of the hearing, the Tribunal demonstrated that it had a closed mind. There is no transcript of the Tribunal hearing in evidence before the Court, so I am unable to ascertain precisely how adverse matters were raised with the first applicant. There does not, however, appear to be any dispute that the Tribunal raised a list of 11 concerns with the first applicant early in the hearing. The Tribunal reasons reflect that the Tribunal gave the first applicant and her representative a document with 11 paragraphs, 10 of which were single sentence paragraphs, along with a copy of her movement record and PRISMS record. The Tribunal suggested in its reasons that the first applicant sought and was granted additional time to discuss the document and its contents with her solicitor.
A well-informed lay person would understand that, to the extent that information from the movement record and PRISMS record would be the reason, or part of the reason, for affirming the decision under review, the Tribunal had an obligation to give the first applicant an opportunity to comment on it pursuant to s 359A or s 359AA of the Migration Act. A well-informed lay person would also understand that the Tribunal is an inquisitorial body and when it was presented with submissions and information that it perceived to be conflicting, it was open to the Tribunal to give the first applicant an opportunity to clarify the information and address the perceived inconsistencies. I do not accept that the fact that the Tribunal raised these matters with the first applicant might cause a fair-minded and well-informed lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to the review. I do not consider that the fact these matters were raised at the commencement of the hearing changes this position.
The third assertion is that the presiding member made inappropriate comments about his own university education. In the written submission, the applicants asserted that the Tribunal member discussed his own experience as a student in Australia which was not relevant to the proceedings, would have been difficult to understand, and could be taken as being condescending and an inappropriate remark without a factual basis. It is not clear from this exactly what remarks the applicants are referring to. The Tribunal member indicated at [58] in responding to this allegation that the Tribunal had observed it was an expectation in Australia that students enrolled in courses, attended instruction, completed assignments and exams and progressed to the next level. In the absence of any transcript and clear identification of the remarks made by the Tribunal that are said to give rise to an apprehended bias, the applicants have not established that any comments the Tribunal member made about his own education in Australia gave rise to a reasonable apprehension of bias.
The fourth matter referred to at [55] of the Tribunal’s reasons is that the presiding member asked an unrealistic question as to whether the first applicant had sought advice from a Chamber of Commerce, industry group or company as to the utility of Australian education in India. In their written submissions to the Tribunal, the applicants asserted that asking this question gives rise to an impression that the Tribunal set an unrealistically high standard for the first applicant to meet, which is beyond the scope of the criteria for the grant of the visa. Notwithstanding this concern, the submission attached evidence addressing this question.
A well-informed lay person would understand that one of the matters for the Tribunal to consider was the value of the proposed course to the first applicant’s future. The Tribunal had regard to the additional evidence provided by the applicants at [84] of its reasons, but gave the information little weight given that the purpose of the document and organisation was to encourage international students to come to Australia and spend large amounts of money. The Tribunal acknowledged the applicants’ submission that international qualifications are held in high esteem in India but found that there was little evidence to support or reject that proposition. The Tribunal does not appear to have made adverse findings against the applicant because of her failure to seek advice from a Chamber of Commerce or similar group. In these circumstances, I do not consider that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal’s questioning of the first applicant as to whether she had sought advice from a Chamber of Commerce, industry group or company about the utility of education in Australia might have led to the Tribunal making a decision otherwise than on the merits of the case.
The next assertion referred to in [55] is that the Tribunal member did not take into account the difficulty of balancing, as a female, two young children and placed too much weight on work requirements when the first applicant may have done a shift here and there while she was not studying. This assertion was made prior to the Tribunal making its decision in this matter and it is not clear to me the basis upon which the assertion is made. In any event, I have already addressed at [46] above that the Tribunal, in reaching its final decision, had regard to the first applicant’s evidence about the impact of being a mother on her study. It was open to the Tribunal to have regard to the work performed by the applicant in Australia and the first applicant’s reasons for not studying in reaching its decision. I do not consider that the assertion raised by the applicants might cause a fair-minded and well-informed lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to the review.
The next assertion at [55] of the Tribunal’s reasons is that the Tribunal member failed to consider that the first applicant was trying to point out that the completion of her Certificate IV in Commercial Cookery she had a further unit to complete and that was a reason for non-enrolment. Again, this assertion was made prior to the Tribunal giving its reasons for its decision. The Tribunal carefully summarised and had regard to the first applicant’s reasons for not being enrolled in a course of study at various times. The Tribunal member was not required to disclose his thought processes to the applicants during the hearing. There is no basis, from the evidence before the Court, to infer that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have brought an open mind to the conduct of the review.
The next assertion is simply that the case was not getting a fair go. Without more, there is insufficient detail in this assertion for the Court to be able to conclude that a fair-minded and well-informed lay person might reasonably apprehend that the case was not getting a fair go or that the Tribunal might not be bringing an impartial mind to the conduct of the review.
The next assertion at [55] of the Tribunal’s reasons is an expression of concern that the Tribunal member was writing the decision in the course of the hearing to make a negative decision, potentially without affording the applicants an opportunity to address the issues. The Tribunal member at [58] expressly denied that he was writing the decision as the hearing progressed and instead asserted that he took detailed notes during the hearing from a template of questions about matters that go to Ministerial Direction No 69 and whether the first applicant is a genuine temporary entrant. I have no evidence before me that the Tribunal member was in fact writing the decision during the course of the hearing. A fair-minded and well-informed lay person would understand that the Tribunal decision should be based on accurate information. Taking notes in the course of the hearing is a method by which the Tribunal can make an accurate record of information. I do not accept that a fair-minded and well-informed lay person might reasonably apprehend that, because the Tribunal member took notes during the hearing, the Tribunal might not have brought an impartial mind to the review application.
The next assertion is that if the Tribunal member continued the hearing and made a decision on the day without giving an adequate response to the concerns raised, the applicants could rely on those grounds in the Federal Circuit Court. This does not establish a reasonable apprehension of bias. At a factual level the Tribunal member did not complete the hearing on that day, but rather adjourned the hearing to give the applicants an opportunity to put their concerns in writing and, as can be seen from the extract of [58] of the Tribunal’s reasons, the Tribunal member carefully considered those concerns.
The final issue raised at [55] of the Tribunal reasons is that members probably do too many genuine temporary entrant cases. This is the expression of an opinion of the applicants or their representative made in circumstances where the factual foundation underlying the opinion is not explained. The number of cases conducted by Tribunal members on particular issues is a reflection of their experience and without more is not a basis for finding that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not bring an impartial mind to the conduct of the review.
The other matter raised by the applicants in the particulars to their ground is that the Tribunal made remarks in its decision pertaining to overseas students, in particular that they have minimal obligations, that the case as a weak case by reference to the first applicant’s non-compliance, and in relation to the value overseas students from India would achieve in studying VET sector courses in Australia. The applicants assert that these remarks might lead a fair-minded lay observer to reasonably apprehend that the Tribunal might not bring an impartial mind to the applicants’ case.
The applicants referred to [36] of the Tribunal’s reasons. In this paragraph, the Tribunal said:
Minimal obligations are imposed on student visa holders. They are expected to adhere to visa conditions at all times. They are expected to maintain enrolment in appropriate courses of study. They are expected to study. They are expected to progress academically. In the period 28 May 2014 until 15 March 2017 there are only isolated examples of compliance with these expectations. In this period compliance with this is the exception not the rule. It is not the behaviour of a genuine student intending genuinely to stay temporarily in Australia.
The applicants also referred to [85] of the Tribunal’s reasons. In this paragraph the Tribunal said:
Similarly there is little evidence beyond assertion that goes to the utility of Australian VET level education in India. The Tribunal finds it difficult to accept that in a country as large and wealthy as India with literally tens of thousands of education providers at technical, vocational, academy, college, state and graduate level in both the public sector and private sphere and in the community sector there is not one institution that offers courses comparable to the Hospitality Management courses on offer to the applicant in the VET sector in Australia.
I accept the Minister’s submission that the Tribunal’s observation at [36] that student visa holders have minimal obligations was an observation that was open to it. The applicants have not led any evidence or made any submissions to suggest that the obligations on student visa holders referred to in that paragraph are not accurate. I do not accept that a fair-minded and well-informed lay person might reasonably apprehend from this comment that the Tribunal might not have brought an open mind to the review.
I further accept the Minister’s submission that, in response to the written submissions requesting recusal, the Tribunal expressly denied saying that the case was weak, and that there is no evidence before the Court to suggest that the Tribunal did in fact say that the case was weak. In circumstances where the factual assertion behind the allegation of bias is not established, the allegation of bias on this basis cannot succeed.
The Tribunal’s comments at [85] in relation to the utility of Australian VET level courses in India are an observation about the lack of evidence before it. It is open to the Tribunal to make observations in relation to the lack of evidence on a particular point. The applicants have not clearly articulated the link between these comments and the feared deviation from deciding the case on its merits. On the evidence before me, I do not accept that a fair-minded and well-informed lay person might reasonably apprehend from the Tribunal’s observations at [85] of its reasons that the Tribunal might not have brought an impartial mind to the review.
The matters raised by the applicants do not, individually or cumulatively, establish that the Tribunal decision is affected by a reasonable apprehension of bias.
Other procedural fairness issues
Although the whole of ground 3 purports to relate to bias, particulars (d) and (e) refer to matters that go more directly to procedural fairness obligations.
By particular (d), the applicants assert that the Tribunal failed to provide them with a copy of the adverse information, PRISMS record and movement record after the hearing. The Tribunal reasons reflect that the Tribunal handed to the applicants a one-page sheet raising 11 concerns and a copy of the PRISMS record and movement record at the start of the hearing. The reasons also reflect that the Tribunal discussed each of the concerns with the first applicant and invited her to comment on them. There is nothing in the evidence before the Court to suggest that the Tribunal failed to comply with its obligations under ss 359A and/or 359AA of the Migration Act. I accept the Minister’s submission that the Tribunal was not required to do anything further. I do not accept that particular (d) gives rise to a denial of procedural fairness and, in circumstances where it appears the Tribunal complied with its procedural fairness obligations, I do not accept that the matters referred to in particular (d) might cause a fair-minded and well-informed lay person to reasonably apprehend that the Tribunal might not have brought an impartial mind to the conduct of the review.
By particular (e), the applicants assert that the first applicant was not provided procedural fairness at the resumed hearing to outline why the courses would benefit her if she returned to India, despite this being a material aspect of Ministerial Direction No 69. I accept the Minister’s submission that there is no evidence before the Court to suggest that the first applicant was denied any opportunity to outline why the course would be of benefit to her. There is no transcript of either of the Tribunal hearings in evidence before the Court and therefore no basis for me to conclude that the first applicant was not given an opportunity to outline the benefit of the course at the second hearing.
In any event, the relevant question is whether the first applicant was given an opportunity to address these matters in the course of the review, rather than at the second hearing. I accept the Minister’s submission that the first applicant was on notice from the delegate’s decision and the information provided by the Tribunal, including in the course of its questions to her, that the determinative issue on review would be whether she satisfied cl 500.212 in Schedule 2 to the Regulations and that the factors in Ministerial Direction No 69 would be relevant considerations. I further accept that the applicants submitted various written submissions and had two hearings and had an opportunity to address the relevant issues. Particular (e) does not establish that the applicants were denied procedural fairness and nor does it give rise to any basis for concluding that a fair-minded and well-informed lay person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the conduct of the review.
Ground 3 is not established.
CONCLUSION
The applicants have not established that the Tribunal decision is affected by jurisdictional error. The application for judicial review must therefore be dismissed.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams.
Associate:
Dated: 3 May 2024

File number:	MLG 745 of 2019
Judgment of:	JUDGE LADHAMS
Date of judgment:	3 May 2024
Catchwords:	MIGRATION – application for judicial review of a decision made by the Administrative Appeals Tribunal affirming a decision to refuse to grant student visas to the applicants – whether the Tribunal failed to give proper, genuine and realistic consideration to written submissions provided on behalf of the applicants – whether the Tribunal failed to consider a clearly articulated argument or an argument that clearly emerged on the materials – whether the Tribunal decision was affected by reasonable apprehension of bias – no jurisdictional error – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 359AA, 359A, 476, 477 Migration Regulations 1994 (Cth) Sch 2, cll 500.212, 500.311
Cases cited:	CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Division:	Division 2 General Federal Law
Number of paragraphs:	94
Date of hearing:	11 April 2024
Place:	Perth (via Microsoft Teams)
Counsel for the Applicants:	The first applicant appeared in person
Counsel for the First Respondent:	Ms K Petrovski
Second Respondent:	Submitting appearance, save as to costs.
Solicitor for the Respondents:	Sparke Helmore Lawyers

MLG 745 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	SUKHDEEP KAUR GILL First Applicant TEJINDER SINGH KALER Second Applicant HARSAHEJ SINGH KALER Third Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE LADHAMS
DATE OF ORDER:	3 MAY 2024